The Society of Editors is a worthy body which supports the right to freedom of expression and the importance of the news media in a democratic society. It is currently holding its annual conference with the title “Freedom to Inform” – another value which we can all support.
Unfortunately, from time to time, the Society is drawn into supporting the narrow interests of certain sections of the press in opposition to the wider public interest.
At today’s conference, the keynote speech was given by Lord Grade, a journalist and television executive of great experience, including periods as Chairman of the BBC and of ITV. In June 2013, the editor of the Financial Times proposed that he be appointed as a mediator to broker a deal of some sort between the newspaper industry and Hacked Off. He has, however, never met or spoken with Hacked Off.
His speech today contained a number of errors and confusions which rather confirm the Hacked Off view as to his unsuitability for a “mediation role”. We will mention only 10 points. Quotes from Lord Grade are in italics.
(1) “Parliament has spoken” has been the cry. Well, actually it hasn’t – for the record, there has been no specific vote in either House”.
In fact there was a vote in the House of Commons on 18 March 2013, the question was put and agreed to:
“That this House has considered the welcome publication of the draft royal charter by the Prime Minister, Deputy Prime Minister and Leader of the Opposition, and the Prime Minister’s intention to submit the charter to the Privy Council for Her Majesty’s approval at the Privy Council’s May meeting.”
(2) “Indeed, so eager were our elected representatives to show just how deeply they shared the public’s outrage, that they handed what looked like a veto on it to the unelected representatives of Hacked Off as they drafted. That final session, where politicians of three main parties huddled in secret over pizza with Hacked Off in the room to agree the final draft of the Royal Charter, while the industry directly affected was unrepresented – that session was, to say the very least, counter-productive”.
The drafting of the Charter over pizza by the political parties and Hacked Off is a silly myth which has been exposed on numerous occasions by, amongst others, Oliver Letwin in evidence to a Select Committee. On its own admission the press had an extensive consultations with Conservative ministers from January 2013 onwards – producing a draft charter in February 2013 which had no input from victims. Hacked Off was asked its views on the Cross-Party charter because David Cameron had given sworn evidence to Leveson that this would happen.
(3) “So is it really different this time? This time, is the press really condemned to live under the shadow of statutory regulation on the one hand, or bankruptcy in the defamation courts on the other?”
The Royal Charter on Self-Regulation of the Press (the name gives a hint) is not a statute and does not provide for “statutory regulation”. It provides for independent “recognition” or “audit” of a body set up by the press itself.
(4) “Everyone was a bit taken aback by the speed at which the Royal Charter went through the Privy Council and the law on exemplary damages was changed. But that speed may well be their downfall”.
Speed? The Royal Charter took seven months to be approved and it did not change the law on exemplary damages.
(5) I am opposed to statutory regulation of the press. The idea of politicians, themselves subject to press scrutiny, voting on and having the opportunity to amend statutory press regulation can never be in the public interest.
The Royal Charter does not provide any opportunity for politicians to vote on, much less amend statutory regulation. As already indicated, it contains no provisions for statutory regulation.
(6) But within these bounds – and they are quite considerable – the press has to be free to publish what it considers to be in the public interest. Publish and be damned, as my first boss Hugh Cudlipp so memorably said.
This is exactly the position under the Royal Charter which says, in terms, that the Board of a recognised self-regulator “should not have the power to prevent the publication of any material, at any time” (Schedule 3, Recognition Criterion 17) (And Cudlipp was quoting the Duke of Wellington, who wasn’t flying a flag for free speech but was dismissing a blackmailer.)
(7) “The current Royal Charter agreed by the three main parties with such approving noises from Hacked Off is a dangerous step too far. It enshrines the principle that Parliament has the right – however remotely – to vote for the first time on the regulation of the press. And that, to me, is a red line”.
His Lordship is, again, wrong. The Royal Charter grants no right to Parliament to vote on regulation of the press. Rather, the combination of the Enterprise and Regulatory Reform Act 2013 and the Charter provide that the Charter cannot be amended without a vote of two thirds of both Houses. This is to prevent the Government from interfering with the Charter without public debate. Parliament can already, at any time, vote (by simple majority) on regulation of the press – under our constitution it is sovereign.
(8) “My key objection is that it gives Parliament not just a voice but a say in the regulation of the press. Parliament gets a say by voting. Imagine if a vote on press regulation had been going through Parliament at the time the Telegraph was exposing the scandal of MPs expenses?”
This “key objection” is misconceived. The vote would only be on amending ‘recognition criteria’ in the Charter – it would have no impact on day to day regulator activity.
(9) “But as things now stand, Parliament will have more right to interfere in the editorial freedom of the press than it does in the editorial freedom of the BBC”.
This is entirely the wrong way round. Government can take over the BBC at any time. In contrast, the Royal Charter on Self-Regulation of the Press prevents the Government from making any change without Parliamentary approval and provides Parliament with no right whatever to interfere in the editorial freedom of the press.
(10) “The proponents of the government’s Royal Charter make much of the so-called “carrot” it offers to the press in the form of protection from exemplary damages for those who volunteer to sign up for ‘their’ charter. … However, many fine legal minds question whether this section of the Crime and Courts Act will stand up to the scrutiny of the courts.
I sought advice on this point from Lord Pannick QC, one of the country’s leading experts in this field. His opinion was unequivocal. I quote from his note to me:
“My view is that it is a breach of Article 10 of the European Convention on Human Rights to penalise by exemplary damages those newspapers who refuse to sign up to the official – Royal Charter – regulator.”
There is no “official Royal Charter regulator”. And most lawyers disagree with Lord Pannick on this point. But if he turns out to be right then exemplary damages awards – which only cover outrageous disregard of rights – will not be made.
In his speech Lord Grade then slips into the role of advocate – praising the virtues of IPSO, a body which even Conservative ministers believe does not comply with the recommendations of the Leveson Report. It is difficult to see how he can be both advocate and mediator.
At one point in his speech, Lord Grade said:
Honestly, I think there’s a lot of muddled thinking going on here.
He is right. Unfortunately, he is one of the muddled thinkers.